Appeals

A direct appeal is a federal criminal defendant's first and best opportunity to challenge an unjust conviction or sentence. Every defendant convicted after a trial is entitled to one direct appeal of the conviction and sentence. A defendant who pleads guilty may appeal the sentence unless he has waived that right.

Appeals don't decide whether a defendant is guilty or innocent. The question before an appeals court is whether there are legal errors which affect the verdict or sentence. The issues can be complex. That is why, if you or a loved one has been found guilty, you need an attorney experienced in handling federal criminal appeals.

Since 1989, my practice has focused primarily on federal plea negotiations and post-conviction defense, including direct appeals. Because I handle only a few cases at a time, I can devote the time it takes to do my best for each client. And because I have a highly focused practice, I am able to offer the quality of work normally associated with big firms, but with the personal attention and affordability expected from a small firm.

My office is located in suburban Philadelphia, but I handle federal appeals throughout the United States.

If you or a loved one needs an attorney who regularly represents individuals in direct federal criminal appeals, please call (610) 649-8200, or click here to send an e-mail to discuss how I can help.

Who is entitled to a direct appeal?

Every defendant convicted after a trial is entitled to one direct appeal of the conviction and sentence. A defendant who pleads guilty may appeal the sentence. Although many plea agreements include appeal waivers, not all waivers are effective. Even when a waiver is effective, some issues may still be appealable. The government may appeal a defendant's sentence, but not an acquittal.

What issues can be raised in an appeal?

An appellate court does not decide whether a defendant is guilty or innocent. The question before a Court of Appeals is whether legal errors affect the verdict or sentence. Examples of issues that can be raised in criminal appeals include challenges to the sufficiency of the evidence and challenges to court rulings concerning the admission of evidence. A judge's pretrial and trial rulings also can be raised. Other issues for appeal include problems with jury selection, such as when a prosecutor exercises peremptory challenges based on race, or when the district court improperly refuses to excuse a biased juror. Issues regarding the correctness of a defendant's sentence also may be raised. An appeals court will not consider new evidence.

How does a direct appeal differ from a § 2255 motion?

Direct appeals are decided based on the District Court record. The "record" includes all the documents filed with the District Court and all of the oral testimony and argument presented to the court. Section 2255 motions offer defendants the opportunity to present new evidence. Unlike in a direct appeal, not all issues may be raised in a § 2255 motion. Section 2255 motions may be used only to raise jurisdictional, constitutional, or other fundamental errors. Because a § 2255 motion cannot be used for all legal challenges, even if a defendant has a claim that requires new evidence, it is generally not a good idea to forego a direct appeal and proceed directly to a § 2255 motion.

How does a defendant begin an appeal?

An appeal begins with the defendant's filing a notice of appeal with the clerk of the District Court. The notice must be filed within ten days after the Clerk enters the judgment of conviction on the court's docket, or within ten days after the government files a notice of appeal. Saturdays, Sundays, and legal holidays do not count toward the ten days. If a defendant misses the 10-day deadline, an appeal may still be possible if the defendant can demonstrate excusable neglect within 30 days.

How long does an appeal take?

Most appeals take from one year to 18 months from the filing of the notice of appeal to decision. In complicated cases, appeals have been known to take several years.

What are "briefs"?

The defendant-appellant's brief is a written argument stating the reasons why the conviction or sentence should be reversed. After the defendant-appellant's attorney files an opening brief, the prosecution files an answering brief. After the prosecution files its brief, the defendant-appellant can file a reply brief.

What is oral argument?

Once all the briefs are filed, the appellate court may hear oral argument. At oral argument, the prosecutor and defense counsel appear before the three judges who will decide the case. Courts generally give each side less than half an hour for oral argument (sometimes as little as ten minutes a side). The court does not hear witnesses or consider any new evidence. Oral argument gives the judges the opportunity to ask attorneys questions they have after reading the briefs. Not all cases have oral argument.

May the defendant or his family and friends attend oral argument?

Oral argument is open to the public, but defendants who are in prison are not brought to oral argument. An imprisoned defendant may purchase a CD or tape of the oral argument from the Court and arrange with his or her counselor to listen to it.

What happens if the defendant wins?

When a defendant wins an appeal, it does not usually mean that a judgment of "not guilty" will replace the guilty verdict and the person set free, although that is possible and does occasionally happen. More often, when a defendant wins an appeal, he or she receives a new trial or a resentencing.

What happens if the defendant loses?

If a defendant loses an appeal or does not prevail on one or more issues, he or she may file a petition for rehearing with the three-judge panel that decided the case or with the all of the judges of that Court of Appeals. When all of the judges rehear a case, it is called a rehearing en banc. Whether or not a defendant petitions for rehearing, it is possible to file a petition for review (Petition for Certiorari) in the Supreme Court. The Supreme Court rarely grants such petitions.